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Case Law of the Boards of Appeal

 
 
b)
Application in the case law 

In T 81/84 (OJ 1988, 207) the question arose whether or not the character of menstrual discomfort manifesting itself for instance in intense headaches and other painful symptoms was such that its treatment should fall under the category of therapeutic treatment. The board found that the concept of therapy should not be construed narrowly. It would be impossible and undesirable to distinguish between basic and symptomatic therapy, i.e. healing or cure and mere relief. The board concluded that irrespective of the origin of pain, discomfort or incapacity, its relief, by the administration of an appropriate agent, was to be construed as therapy or therapeutic use within the meaning of Art. 52(4) EPC 1973.

In T 24/91 (OJ 1995, 512) the board observed that the term "therapy" was not restricted to curing a disease and removing its causes. Rather, this term covered any treatment which was designed to cure, alleviate, remove or lessen the symptoms of, or prevent or reduce the possibility of contracting any disorder or malfunction of the human or animal body. The board found that the claimed process removed, by treatment of the patient's eye, the symptoms of myopia, hyperopia and astigmatism and was therefore a therapeutic treatment.

In T 469/94 the question at issue was whether increasing the acetylcholine level in the brain and tissue and thereby reducing the perception of fatigue in a person about to participate in major exercise or having completed major exercise counts as therapeutic treatment of the human body. The board found that it did not, noting that the condition of fatigue induced by the performance of exercises was a transitory physiological condition caused by natural circumstances and removable by simple rest. Simple training was generally known to retard the perception of fatigue. Pain or serious suffering did not appear to be manifestations of fatigue, which therefore was not comparable with the pathological state typical of a disease or an injury. The board observed that the treatment for reducing the perception of fatigue was not even comparable with the relief of pain, discomfort and incapacity (see above T 81/84, OJ 1988, 207).

In T 74/93 (OJ 1995, 712) the claimed invention related to alicyclic compounds and their contraceptive use. The board took the view that a method of contraception was not excluded per se from patentability under the aspects of industrial application as stipulated in Art. 57 as well as in Art. 52(4), first sentence, EPC 1973 (now Art. 53(c) EPC). Pregnancy was not an illness and therefore its prevention was not in general therapy according to Art. 53(c) EPC ( see also T 820/92, OJ 1995, 113; T 1635/09, OJ 2011, 542). Nevertheless, the method could not be patented. The board found that a method of contraception to be applied in the private and personal sphere of a human being could not be deemed susceptible of industrial application (see Chapter I.E.2.1).

In T 241/95 (OJ 2001, 103) the board held that the selective occupation of a hormone receptor could not be considered as a therapeutic application; the discovery that a substance selectively binds the serotonin receptor, even if this represented an important piece of scientific knowledge, still had to find a practical application as a defined, real treatment of a pathological condition in order to make a technical contribution to the art and to be considered as an invention eligible for patent protection.

In T 1075/06 the board held that a method claim comprising the step of returning processed blood, depleted of some of its components and charged with an anticoagulant, to a donor is a method for treatment of the human body by therapy which is excluded from patentability under Art. 53(c) EPC.

According to the contested patent in case T 611/09, a lock solution was used for infusion into the lumen of an in-dwelling intravascular catheter, i.e. a catheter which was typically inserted into a vein or artery and therefore in intimate contact with the human or animal body. According to the board, this did not necessarily mean that the lock solution was also directly in contact with or even active within the human or animal body. The board concluded that the antibacterial activity only took place in the lumen, which was part of the catheter that was located outside of the human or animal body, which meant that it was not therapeutic.